Does the law protect your right to consent to sex on the condition that a condom be worn? Is it fraud if an intimate partner removes a condom without your knowledge or sabotages it during sex? Is condom removal or sabotage only considered unlawful if you are put at a health risk because of it? What is the relationship between condom abuses and intimate partner violence?
These are the questions at the heart of R. v Kirkpatrick, a case being heard in November 2021 at the Supreme Court of Canada (SCC).
What’s at stake in this case
Since the SCC’s 2014 decision in R. v Hutchinson, when someone has agreed to sex only if a condom is used but then the condom was removed or sabotaged, this has been treated as a case of fraud. The key question according to Hutchinson is whether the survivor was at a health risk (like pregnancy or a sexually transmitted infection).
But what if the accused doesn’t have an STI? What if the complainant cannot get pregnant? This analysis does not consider the impact on the survivor’s dignity and autonomy. Instead, it leaves room for violative and abusive condom practices, and denies survivors of sexual assault adequate recourse.
In Kirkpatrick, the SCC will revisit consent in the context of condom abuse, giving the Court an opportunity to clarify the definition of consent and the test for fraud.
We will argue that requiring the accused’s actions to have posed significant health risks to the complainant leaves the door open to invasive and regressive inquiries about the complainant’s sexual, reproductive, and mental health before and after the assault. This exacerbates complainants’ preexisting vulnerabilities within the criminal justice system.
The trial judge acquitted Mr. Kirkpatrick, finding that he did not deceive the complainant about his lack of condom use and thus did not commit fraud. The BC Court of Appeal overturned that decision, saying the Hutchinson test had been misapplied because the accused broke a promise to wear a condom, and that a person can make condom use a condition of their consent as sex with a condom is a different “basic physical act” than sex without a condom. Mr. Kirkpatrick is challenging this ruling at the SCC.
This intervention builds on our longstanding work to address the rights and interests of sexual assault survivors within and outside the criminal law system.
We are grateful to pro bono counsel Jessica Lithwick and Jennifer Crossman of Sugden, McFee, and Roos LLP, who are joining our own Kate Feeney, for their representation in this case.